Federal Court of Australia Pleash (Liquidator), in the matter of SFG Relocations Pty Ltd v Fourie (No 2) [2024] FCA 182 File number: NSD 817 of 2021 Judgment of: STEWART J Date of judgment: 4 March 2024 Catchwords: CORPORATIONS – application for leave to proceed with an existing proceeding against a company in liquidation Legislation: Corporations Act 2001 (Cth), s 471B Cases cited: Chahwan v Euphoric Pty Ltd [2006] NSWSC 1002 Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 6 Date of hearing: 4 March 2024 Counsel for the Plaintiff: P Afshar Solicitor for the Plaintiff: Bartier Perry Counsel for the Defendants: The Defendants did not appear. ORDERS NSD 817 of 2021 IN THE MATTER OF SFG RELOCATIONS PTY LTD (FORMERLY KNOWN AS WRIDGWAYS AUSTRALIA PTY LTD) ACN 079 887 728 (IN LIQUIDATION) BETWEEN: BLAIR ALEXANDER PLEASH IN HIS CAPACITY AS LIQUIDATOR OF SFG RELOCATIONS PTY LTD (FORMERLY KNOWN AS WRIDGWAYS AUSTRALIA PTY LTD) ACN 079 887 728 (IN LIQUIDATION) Plaintiff AND: SAREL JAKOBUS FOURIE First Defendant WW WAREHOUSE SERVICES PTY LTD ACN 640 073 169 Second Defendant WATCHMAN HOLDINGS PTY LTD ACN 632 703 336 (and another named in the Schedule) Third Defendant order made by: STEWART J DATE OF ORDER: 4 MARCH 2024 THE COURT ORDERS THAT: 1. Pursuant to s 471B of the Corporations Act 2001 (Cth) the plaintiff have leave to proceed with the claims against Watchman Holdings Pty Ltd ACN 632 703 336 (in Liquidation) set out in the plaintiff's further amended originating process and further amended points of claim dated 23 January 2023. 2. The costs of the interlocutory application be costs in the cause of the principal proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (delivered ex tempore) STEWART J: 1 By an interlocutory process, the plaintiff seeks leave pursuant to s 471B of the Corporations Act 2001 (Cth) to proceed with its claims against the third defendant, Watchman Holdings Pty Ltd (in liquidation) – which I will refer to as Watchman. The plaintiff is the liquidator of SFG Relocation Pty Ltd (in liquidation) which I shall refer to as the company. 2 In the substantive case, the plaintiff seeks proprietary relief as well as other relief in relation to certain trademarks he claims were unlawfully removed from the company and transferred, first to Watchman and then to EW1892 Pty Ltd, the fourth defendant, a company that is controlled by Mr Fourie, the first defendant. It is alleged that Watchman was the conduit through which the trademarks were unlawfully conveyed. 3 The matter is listed for trial on 15 to 18 April 2024. Watchman went into liquidation on 22 September 2023. 4 The defendants, including the liquidators of Watchman, are unrepresented. They have not appeared to oppose the leave that is sought, nor have they indicated any such opposition. The principles concerning leave to proceed against a company in liquidation are well-established. 5 A person who seeks leave must demonstrate that there is a real dispute in relation to which leave is sought and that there is a good reason why it is not appropriate for a proof of debt to be lodged. In Chahwan v Euphoric Pty Ltd [2006] NSWSC 1002 at [40], Barrett J held that courts will usually grant leave in circumstances where the applicant seeks proprietary remedies, because such remedies cannot be accommodated in the proof of debt regime. 6 I am satisfied that I should exercise my discretion in favour of granting the plaintiff leave to continue the proceeding against Watchman. There are a number of reasons for that, as submitted by Mr Afshar for the plaintiff, but the overwhelming reason is that proprietary relief is sought which – as mentioned – cannot be accommodated in the proof of debt regime. Leave should therefore be granted. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. Associate: Dated: 4 March 2024 SCHEDULE OF PARTIES NSD 817 of 2021 Defendants Fourth Defendant: EW1892 PTY LTD ACN 650 887 942